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When alcohol and driving combine, less is always more

David Butt is a Toronto-based criminal lawyer

Justice Minister Jody Wilson-Raybould has recently favoured lowering the legal blood-alcohol limit for drivers to 0.05 per cent from 0.08 per cent. Is this a good idea? Yes, but much depends on how we go about it.

Making social policy is often difficult because there are sound competing benefits to balance. For example, proponents of pipelines reasonably tout their economic benefits, and opponents reasonably argue environmental degradation. Thus, the pipeline-policy dilemma requires wrestling with competing benefits, seeking to do more good than harm.

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No such balancing of competing benefits arises around impaired driving, however, because it has not a shred of moral worth or social utility. The only social-policy challenge is not whether to eradicate impaired driving, but how.

The industry association Restaurants of Canada opposes a lower limit, arguing that drunk drivers who cause deaths overwhelmingly have more than twice the legal limit, so the problem is not those in the 0.05-to-0.08 range. Apart from being patently self-serving, this argument ignores the pernicious influence alcohol has on the crucial decision to drive. No sane person in a sober state favours driving drunk. Yet impaired driving arrests abound, solely because alcohol impairs the drinker's self-assessment about whether he or she can drive safely. Therefore, as long as we have a legal standard that tolerates both drinking and driving, we are encouraging impaired people to make decisions to operate a complicated piece of heavy equipment at high speeds mere metres from potential innocent victims. That is legally sanctioned reckless disregard for the safety of others.

Other opponents of lowering the legal limit argue it will flood the courts with new cases at a time when court delay is already at crisis levels. This is a very good point, but it is no excuse not to act. Rather, we must act with an informed understanding of the dynamics of impaired driving in our courts.

Impaired driving is a middle- and upper-class crime. It is committed mostly by people well off enough to afford cars and overpriced drinks in bars, driving distance away. The same people who can afford these things can also afford top-drawer legal talent. And they are highly motivated to hire that talent because the penalties are severe. So impaired driving cases clog the courts with brilliant but highly technical arguments devised by clever, expensive lawyers.

Because impaired drivers are invariably nice, middle-class folks with plenty of other redeeming qualities, judges are all too humanly tempted to give these nice people a break, and avoid imposing harsh sentences, as long as the accused person caused no harm to innocent victims. So judges in these no-harm drunk-driving cases accept the lawyers' technical arguments and acquit when they shouldn't. This so-called success only emboldens expensive lawyers to make more clever arguments in a self-replicating cycle.

As a result, courts spend way too much time on no-harm impaired-driving cases that have little to do with drinking and driving and much to do with technical minutiae. Impaired-driving courts look far too much like wealthy people buying more favourable justice than poor people can afford.

How do we break this cycle? First, by getting rid of the mandatory minimum sentence for first offenders who caused no harm and who plead guilty – and ramping up the sentence if they do not plead guilty. In other words, create a strong disincentive for wealthier accused persons to clog our courts with technical arguments divorced from the reality that they actually drove drunk.

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Second, by doubling down on the educational piece that has contributed so successfully to creating a social environment hostile to drinking and driving.

And third, by funding criminal courts adequately to cope with the increased volume of cases that may still follow a lower legal limit.

As long as we need to drive and like to drink, we owe it to our collective safety to pursue relentlessly the total elimination of the two of them combined.

Video: Pot laws would give police power to test drivers’ saliva (The Canadian Press)
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